Welcome to my blog! At the outset I want to be as clear as possible: everything on this blog and sewrattan.com are my thoughts and legal information only. This blog is not legal advice. Reading this blog does not make me your lawyer and you should not make legal decisions based on the information in this blog. Instead, contact a lawyer who can discuss the issues with you.

For my first blog post I want to jump into a bit of an advanced discussion about the most complicated exception to the hearsay rule, the co-conspirators exception. This post is fairly technical. Lawyers will appreciate it the most, followed in close second by nerds.

The co-conspirators exception is applied mainly (but not exclusively) in criminal conspiracy cases. The Supreme Court justifies the exception in large part on the need to prosecute conspiracy charges. In R. v. Mapara the Court candidly admitted that depriving the prosecution “of the right to use double hearsay evidence of co-conspirators as to what they variously said in furtherance of the conspiracy would mean that serious criminal conspiracies would often go unpunished.” While there are many criticisms of the co-conspirators exception, a narrow issue can be examined for the purpose of discussion. The co-conspirators exception allows for the admission of words and acts of any unindicted person alleged to be a co-conspirator. In so doing, the exception can operate in a manner completely inconsistent with the hearsay rule’s historical rationale.

In order to appreciate the issue, some explanation of the co-conspirator’s exception is required. A trier of fact may consider certain words and acts of the accused person’s co-conspirators in determining whether the prosecution has proven beyond a reasonable doubt that an accused person is a party of a conspiracy. The analysis is described in three steps known as the Carter approach:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.
3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

In the last step, the trier of fact can apply the co-conspirators exception to the hearsay rule and consider a co-conspirator’s acts and declarations done in furtherance of the object of the conspiracy against the accused person.

Implicit in the co-conspirators exception to the hearsay rule is the trier of fact’s finding that the person the prosecution alleges is a co-conspirator is, in fact, a member of the conspiracy. Without this finding, the rationale behind the rule falls away. Co-conspirators are held responsible for each other’s words and acts on the premise that, in agreeing to engage in a common design, co-conspirators have agreed to act as each other’s agents. A co-conspirator’s statements are also effectively part of the actus reus of the offence of conspiracy. Once it is established that parties are involved in the same conspiracy, the acts and words of one are admissions against all. The theoretical foundation for the co-conspirators exception is a mix of the admissions and res gestae exceptions.

The trier of fact must be satisfied that an alleged co-conspirator is probably a part of the conspiracy with the accused person in order for the alleged co-conspirator’s words and acts to be attributable to the accused person. The words and acts of a co-conspirator are reliable evidence against the accused person because they were done to further a common enterprise – an agreed-upon scheme – between the accused person and co-conspirator. It is this context that provides the circumstantial guarantee of reliability. Without this established connection, the co-conspirator’s words and acts are not relevant and reliable evidence respecting the accused person.

Nevertheless, in Ontario there is no need to prove that an alleged co-conspirator is a probable member of the conspiracy before that person’s words and acts can be used to incriminate the accused person. In R. v. Farinacci the Court of Appeal for Ontario curiously reasoned that the co-conspirators exception possesses sufficient reliability from the requirement that the only statements considered are those made in furtherance of the conspiracy. This reasoning misunderstands threshold reliability under the co-conspirators exception. Anyone can make a statement in furtherance of a conspiracy. What matters, and what gives a statement threshold reliability, is that the statement made in furtherance of the conspiracy is made by a member of the conspiracy. Otherwise, the words and acts of any person who advances a conspiracy, however unattached they may be from the conspiracy, will be used to incriminate the accused person.

The co-conspirators exception admits statements made in furtherance of the conspiracy for reasons relating to relevance and reliability. With regard to relevance, the words and acts of alleged co-conspirators that are unrelated to the advancement of the conspiracy are not relevant to a conspiracy charge. With regard to reliability, the agency principle which partly underlies the co-conspirators exception only extends to statements made in furtherance of the conspiracy. Each party to the conspiracy implicitly authorizes the others to speak and act on his or her behalf only insofar as they further the conspiracy. Acts or words not in furtherance of the conspiracy are not authorized and therefore not reliable.

A word or act made in furtherance of the conspiracy is not relevant if it is not made by a probable member of the conspiracy. The facts of Farinacci are instructive. Lucas and Len Farinacci were brothers engaged in mid-level cocaine dealing in St. Catharines, Ontario. They were charged with conspiring to move a large of amount of cocaine to another mid-level cocaine dealer located in Toronto. That drug dealer had his own, separate conspiracy to resell the cocaine in smaller quantities to low-level drug dealers. The low-level drug dealers in turn sold the cocaine on the street. Wiretapped conversations of the low-level drug dealers were played in court and used to convict Lucas and Len Farinacci, despite the fact that the Farinacci brothers were alleged to engage in a separate conspiracy. There was no indication, other than speculation, that the low-level drug dealers’ conversations were about a conspiracy related to the Farinacci brothers or trustworthy.

The blind spot created by Farinacci allows for the potential admission of unreliable and irrelevant evidence. In addition to sharing some of the differences between the historical rationale and the admission and res gestae exceptions, the co-conspirators exception completely departs from the historical rationale when evidence is admitted of unindicted persons who are not probable members of the conspiracy.

There it is. My first blog post. Stay tuned for more in the coming weeks as I explore practical issues such as what to expect at your first criminal court appearance.